Return Capital Punishment - ReCaP

Compensation for false imprisonment has generally been looked at sympathetically by the courts. Some states have passed laws specifying the levels of compensation, using such factors as wage level at time of incarceration, physical pain and emotional suffering, etc. I believe state laws have most often been passed to limit the larger amounts determined by a sympathetic judge and/or jury at litigation. Well, sure: history has taught us that just about any system is supportable, from revenge "honor" killings of the perp's family by the victim's family to lynchings, from blatantly race, class, geographic and gender-based outcomes to the abuse of criminal law for political control.The error most corrosive to faith in the system is the corrupt or indifferent conviction of the innocent, and our justice system was founded on the notion that it is better to let a few guilty parties escape justice than to punish an innocent person. The results of "innocence projects" over the past decade or so have demonstrated what happens when the balance tips the other way because of politicized "hard-nosed, tough on crime" posturing. I think it would be great to have certain criminals executed if we could be absolutely sure of their guilt.Of how many other things are you absolutely sure?Unfortunately, we know our justice system is flawed not just by human error but by bad faith: fabricated evidence of guilt, suppressed evidence of innocence, and the rehearsing of the intellectually disabled and mentally ill with crime scene info to make false/forced confessions more credible. We would have inevitable errors even if all participants in the process acted in good faith, and we are light years away from that condition.In any event, false imprisonment and false execution do not share a moral continuum; the difference is as profound as relative and absolute, temporary and permanent. An innocent person set free can speak out and struggle to correct and improve the process that put them away; the dead are mute, and little effort is spent to clear their names, solace their families, and correct the flawed process that killed them.Lost time is compensable and, in fact, need not be entirely lost--even while imprisoned one can read, write, love, learn, find God, grow.Lost life is entirely lost: the meaning of a life is not fixed until it ends, and executing an innocent person robs them not just of their unitary biological life but also the myriad potential lives they might have achieved.Could I buy someone's death, just like the state? Maybe I should save up my nickels and dimes, maybe open a 401Kill.

Hi, Ben. Thanks for the reply. I, too, am posting in fits and starts from work, so bear with me. We can't do that, Ben, and the system is too impractical to use. But by all means, demonstrate a 0.5% error rate, Ben, and we can talk. I'll come back to that later. You can continue to use "killing" in your special sense, but imprisonment is not killing. There is a bright line between the temporary loss of liberty and death: if you were an innocent man sentenced to hang in the morning, rather than an innocent man scheduled to meet his lawyer in a continuing effort at exoneration, that circumstance would focus your mind wonderfully on the difference.War was nothing like peace, and no doubt I lost something--yet my 30 years of life in peace-time after war were well worth the surviving: I fell in love a time or two, became a father, a grandfather, mourned, celebrated, wrote some things worth writing, saved a couple of lives...not bad for damaged goods better off dead. So you believe that dead is dead and confined living is dead, too? You seem disposed to err on the side of death, Ben. I am not.It is true that monetary compensation for executions later shown to be in error would be a lot easier than even rudimentary justice. That's what we do in Iraq when we kill women and children in our zeal to kill insurgents: I think it's just a few hundred bucks a head. I guess we could simply allow a police officer to summarily execute the folks who look guilty at the crime scene: way easier, cost-effective, too. When the wrongly convicted serve long jail sentences, it is often because our justice system resists examination and correction.More importantly, you continue to equivocate on the term killing. Many folks freed from unjust sentences or death row dedicate themselves to reforming the system. I don't think they feel used for that effort, though they may well feel used by the police and prosecutors who railroaded them for professional or political gain, used by the juries who allowed their biases to be manipulated, and used by their fellow citizens who stood by and watched without protest. Yes, it is that important a dividing line. To equate the misery and lost liberty of a prison sentence with the loss of life, on the grounds that "something essential" has been lost and therefore they are better off dead, is, frankly, appalling. How about refugees, concentration camp survivors, amputees, the disabled--all better off dead, I presume. If my slope is slippery (and all slopes are, after all), yours is teflon.Yes, war takes a toll, but few survivors of it wish they were dead. Again, perhaps it is the experience of imminent death that draws that line so clearly for those who have had it. Let me rephrase this as well. Despite my efforts--political (voting and speaking out) and personal (contributing time and money to reform efforts, famine relief, volunteering as mentor and food kitchen worker), the world remains full of unjust death. I feel as bad about that as I do about the innocent being executed. It is morally incumbent upon me to resist both. I do. Your argument seems to suggest that since one cannot resist all the injustice in the world, one should not resist any of it.Let me add one thing. You say that an error rate of 0.5% would be acceptable.How do you determine that rate? By definition the executed innocents are silenced, and attempts to exonerate them fade away. Prosecutors and politicians resist, sometimes frantically, any attempt to exonerate a convicted felon.Several states have allowed windows of opportunity for "DNA exoneration" in cases where the science was not available at the time of trial, but the prosecutors resist the request for analysis until the window closes--then they destroy the evidence. In addition, inmates are not informed of their eligibility for the DNA testing, and typically only an innocence project rep or a public defender is available to inform them of the possibility.Despite a judicial system that ferociously resists attempts to exonerate the wrongly convicted, the numbers of such exonerated prisoners continue to increase. That the administration of capital punishment in the U.S. is riddled with racism and class bias is incontestable. That the police extract false confessions and prosectuors withhold exculpatory evidence has been proven time and again.The impact of innocence projects is dramatized by the resistance of the state as well as by the fact that teams of law students uncover issues ignored by prosecutors, trial judges, and multiple appeals courts. The parade of freed prisoners wrongly convicted and sentenced to death in these circumstances is not led by a systemic review or reform, but by a rag-tag handful of idealists.I can point to strong evidence that the system frequently fails. In response, you essentially argue three things: that a standard (a 0.5% error rate) which in principle cannot be established justifies the system, that hurting someone is tantamount to killing them, and that loss of life is not such a big deal, anyway.I strongly reject all three. For me, as Schraf has suggested, such a stance would be deeply immoral.

Hi, Ben. My apologies again for the slow responses. I'm preparing for a surgical hospitalization in the near future, and there is a great deal of prep (and angst ) involved. My energies are not what they might be. As I'm sure you've noticed, that is not my project. I am constitutionally skeptical of placing life-and-death powers in the hands of the State. I have replied in previous posts as a partisan--which I am. I have no interest in elaborating structures, policy or rhetorical, that enable executions. But I will attempt to engage your points.Let me start by agreeing that "100% certainty" is a bit of a red herring: I object to the death penalty not because it makes rare errors, but because it is rife with error and abuse. A few posts back, I asked, rhetorically, what else you were absolutely sure of in order to dramatize the high level of moral certainty one would (presumably) require before executing another, but my critique and rejection of capital punishment does not stand or fall on the 100% doctrine. I recall the driving analogy from an earlier thread in which I did not participate. In my opinion, it does not hold up to logical or moral scrutiny.Drivers and passengers accept the risks involved in vehicular transport. While we do know a certain percentage of us will die as a result, we do not delegate a process to determine who those victims should be. Skill or its lack, weather, mechanical failures--all these factors determine the result: it is the lottery of possible death contained within all human activity. It is analogous to the ski slope, not to the court.The analogy would work only if we determined that some people MUST die for the driving system to function, AND devised a system to determine who those people should be--despite the fact that the traffic police both make errors and act corruptly, despite our knowledge that confessions are coerced, despite the evidence that prosecutors game the system in myriad ways, despite the unsafe vehicles produced by some manufacturers, and despite the research that has demonstrated eyewitness accounts to be unreliable.People will die while engaged in every human activity, but only the justice system claims the ability to determine who should die, based on an appraisal of guilt or innocence supported by a determination of what happened. I believe the appraisal and determination is too flawed to bear that weight.I agree that no human endeavor can be carried out will 100% accuracy, and for the most part I agree that that should be no bar to a specific endeavor. But taking a human life is not just any endeavor--it is not driving or pricing insurance or formulating undergraduate grades. It is a unique act, and I believe the standards of certainty should be uniquely high. While we may meet those high standards some day, we do not meet them now.I have observed a number of these debates. One maneuver on the pro-cap side in response to concerns about errors is to suggest that, in cases of absolute certainty--with a combination of eyewitnesses, strong forensic evidence, confessions--we should be able to proceed. The difficulty, of course, is that all these elements have been often falsely met: eyewitnesses lie or err, forensic evidence is planted or fabricated by police labs, confessions are coerced. We each, driver or passenger, hop into the risk pool of our own accord, and we do not mandate a flawed process to determine who should die. We do not apply the criterion of "no innocent deaths" in our daily activites because paralysis would result. We accept the possibility of fatal drug reactions when they are relatively rare, and the balancing good considerable. We permit seafood restaurants and peanut butter sandwiches even though some few individuals will suffer fatal food allergies as a result. We applaud risk-taking recreations--mountain climbing, skiing, scuba diving, hang gliding, etc.--even though they exact their toll. In each of these instances there is some benefit of liberty, economy, or well-being that balances the known price.For capital punishment to meet this standard, the benefit would need to be potent and clear, and not achievable by other, nonlethal means. The efficacy of capital punishment as an inhibition to other crimes is a debate all its own; suffice it to say that I do not think the case can be made that the effect is potent, clear, or unachievable by nonlethal means. Yup. Like I said, I'm a partisan. Good. It is tempting to obey Thoreau's mandate and throw one's body into the Machine--I did much of that decades ago and learned some hard lessons, among them that the struggle to change any system is long and difficult.From attempting to stop individual executions to overthrowing the entire machinery of State-sanctioned death, from ameliorating the social conditions that produce broken people to protecting the rest of us from them...these are all important battles and require partisans who are fully engaged."Dropping everything and fighting the system," unfortunately, is a romantic fancy that is no longer effective, if it ever was: only those engaged with the broader community on many fronts--political, economic, personal, social--can hope to make sustained effort and have real impact. One-issue obsessives are all too readily dismissed and defeated. We are, indeed, all parts of the system, not because we don't drop everything and fight, but because we cannot help but be, whatever we do. We are moral actors within the system not because of our failure to charge the trenches, but because we are human beings.Thanks for your patience, Ben, and your thoughtful replies. Edited by Omnivorous, : typo and double negative

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I'd agree that a life, innocent or not, is damaged by a long prison term--especially in the context of opposing long prison terms. But a life can still be much, despite that "ruin": think Mandela.

True. But few would be able to do so under any circumstances.